The First Amendment Goes to London

Even today, the UK defines libel and slander so broadly that it has become a favorite spot for venue-shopping plaintiffs, aptly termed ‘libel tourists’. British court decisions slap libel convictions on, and thus harm the reputations of, people whose writings fall well within American definitions of satire or commentary on public officials. Even when authors are painfully explicit that they are stating personal opinions and even when they stress that their comments are “alleged”, “potential”, or “suggested”, British courts are notoriously harsh.

This unsettling state of affairs is exemplified by the case of Dr. Rachel Ehrenfeld, author of the 2003 book, Funding Evil: How Terrorism is Funded and How to Stop It. Ehrenfeld, an American citizen, published her work in New York. In all of Great Britain, it sold a scant 23 copies, all of which were purchased on-line. In fact, Dr. Ehrenfeld never even marketed her book in Britain. But her book discussed the involvement of Saudi banker Khalid Salim Bin Mahfouz in funding terrorists.

Mahfouz sued – not in the US or in Saudi Arabia, but in Britain, claiming that the book’s anemic UK sales gave British courts jurisdiction, a point where the British courts giddily agreed. Ehrenfled refused to appear before the British courts on the advice of British legal experts, but was convicted anyway and handed a quarter of a million dollar fine, an order ot apologize, and an order to destroy the remaining stock of her book. Mahfouz has not yet pushed for enforcement, possibly because he is pursuing thirtyother cases against authors who have noted his alleged connection to terrorism in their books.

Ehrenfeld petitioned American courts for a declaratory decision that, as a US citizen who published within American borders, she is subject to US, not UK, libel law. Specifically, she asked for a ruling that the British court’s decision is not enforceable in America. The New York appellate courts ruled that they lacked authority, leaving the state legislature to pass a new law.

In a happy turn, both houses of New York’s state legislature unanimously passed a bill on to Gov. Patterson, which specifically gives American citizens convicted of libel in alien courts the right to ask for a US court ruling that the conviction has no validity in America. New York Congressman Peter King (R) has introduced similar legislation at the federal level.

One on level, the problem here is a lack of respect for, or even acknowledgment of, US sovereignty by foreign courts. When people who commit felonies flee abroad, foreign states have little problem with dictating our criminal law to us, usually in the form of refusing to honor an extradition treaty until the US agrees to barter away certain sentencing options – capital punishment and sometimes life without parole. This has gone even further when foreign courts feel they have the right to demand that an American citizen travel abroad at her own expense to answer for something she did in America – where her actions were perfectly legal.

British courts have become the willing puppets of terrorists who are using conveniently loose libel and slander definitions to intimidate their critics. In America, the subject’s offense at a comment is insufficient grounds for libel. In America, demonstrably accurate statements enjoy some protection. But UK courts have essentially incorporated Sharia law into their statutes.

Slander and libel under Sharia are any comments that offend the subject of the comment. Veracity doesn’t even enter into the equation. Nor does the speaker’s intent matter – only the subject’s feelings determine whether legal defamation has occurred.

Cut loose from any consistent moorings, any burden of proof on the plaintiff’s part, any nod to an objective standard, British courts now purport to legislate niceness around the globe – on the surface. What is really going on here is the perversion of the entire court system to become a tool for terrorism. Free speech and the rights of private citizens don’t seem to matter. Absurd as it is, no amount of research, scholarship, and free speech holds up against the wounded ego of an alleged terror financier.

King’s proposed federal legislation would allow US citizens convicted of libel in foreign courts to sue for damages, but if passed it may have no more point than being a nice gesture. For foreign courts that have already shown contempt for US sovereignty, courts which conduct proceedings without regard to the fact that their reach doesn’t extend into other nations, what good would come of one more declaration of American refusal to put her citizens at the disposal of Britain, cowed by terrorists as she is becoming?

Mahfouz has enough documented ties to terrorism that numerous authors have discussed it in their books. Of 35 previous lawsuits, all filed in the UK, he has extracted penance from every author but Ehrenfeld. If his associations cause him embarrassment or have become inconvenient for the reputation he wants to have, suing everyone who won’t be complicit in this endeavor is a poor solution. Part of the message in his lawsuits and the British court system’s willingness to play into his hands is the idea that he shouldn’t be held responsible for the results of his choices insofar as they damage his name in some peoples’ eyes. But if we are all to be held responsible for someone else’s good name are we going to get to dictate his behavior to him? My suggestion to a man who doesn’t want to be known as a banker to terrorists is: Stop Funding Terrorists.

We should be alarmed at Britain’s trends in this arena. The country has nearly destroyed the last vestiges of privacy her own citizens enjoy and made free speech conditional on the whims of men with sharply defined personal interests. God help us if we grant any sanction to this behavior.

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